Citation Nr: 1720924
Decision Date: 06/09/17 Archive Date: 06/21/17
DOCKET NO. 12-28 924 ) DATE
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RECONSIDERATION )
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On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois
THE ISSUE
Entitlement to service connection for a lumbar spine disorder.
(The motion for revision of a September 2, 2015 Board of Veterans' Appeals (Board) decision to deny service connection for a lumbar spine disorder, on the basis of clear and unmistakable error (CUE), is addressed in a separate Board decision dismissing the issue.)
WITNESS AT HEARING ON APPEAL
The Veteran (Appellant)
ATTORNEY FOR THE BOARD
Patricia Kingery, Associate Counsel
INTRODUCTION
The Veteran, who is the appellant in this case, had active service from March 1976 to February 1979.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied service connection for multilevel degenerative disc disease. A claim for service connection for a lumbar spine disorder was received in October 2010.
Since filing the original claim for service connection (claimed as multilevel degenerative disc disease), the Veteran has repeatedly contended that this case should be rated considering all the lumbar spine disorders listed in the relevant diagnostic codes under 38 C.F.R. § 4.71a (2016) and not only for multilevel degenerative disc disease. See e.g., January 2011 written statement. The evidence of record reflects that the Veteran has multiple current diagnosed lumbar spine disabilities, including lumbar spine degenerative joint disease, degenerative disc disease, facet arthropathy, and central spinal stenosis. See e.g., September 2011 private treatment record, July 2014 VA examination report.
The United States Court of Appeals for Veterans Claims (Court) has held that the scope of a claim for service connection for a mental disability includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). By extension, this logic applies to the scope of any service connection claim. As such, the original service connection claim has been expanded to include all current diagnosed lumbar spine disabilities.
The claim for service connection for a lumbar spine disorder was remanded by the Board in April 2014, and the Board subsequently dismissed the appeal as abandoned under 38 C.F.R. § 3.158(a) (2016) in September 2015. In September 2015 and again in July 2016, the Veteran filed a motion for reconsideration of the September 2015 Board decision. See 38 C.F.R. §§ 20.1000, 20.1001 (2016). In January 2017, a Deputy Vice Chairman of the Board granted the motion for reconsideration. The matter is now before an expanded panel for Board to reconsider the issue of service connection for a lumbar spine disorder. 38 U.S.C.A. § 7103(b) (West 2014).
In March 2013, the Veteran testified at a Board hearing before a Veterans Law Judge in Chicago, Illinois (Travel Board hearing). A transcript of the hearing is of record. Generally the Veterans Law Judge who conducts a hearing shall participate in making the final determination of the claim, subject to the exception in reconsideration of a decision. See 38 C.F.R. §§ 19.11(c), 20.707 (2016). As such, the Veterans Law Judge who took testimony at the March 2013 Board hearing will not serve on this panel. See 38 C.F.R. § 19.11(c) (a reconsideration panel may not include any Veterans Law Judge who participated in the decision that is being reconsidered).
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).
REMAND
Service Connection for a Lumbar Spine Disorder
Initially, VA has a duty to assist claimants by gathering all pertinent records of VA treatment and making reasonable efforts to obtain private medical records. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2016). Pursuant to the April 2014 Board remand instructions, in April 2014 correspondence, the AOJ requested that the Veteran submit any evaluations and treatment received for low back pain in 1991 as well as the initial evaluation and treatment received for a work-related back injury in February 2001. Alternatively, the AOJ asked the Veteran to complete a separate VA Form 21-4142, Authorization and Consent to Release Information for each healthcare provider so that VA could obtain the requested treatment information.
In April 2014, the Veteran submitted multiple authorizations for private healthcare providers who have treatment him for the lumbar spine disorder, and submitted private treatment records from these providers. Review of the claims file reflects that private treatment records related to treatment in 1991 and 2001 for low back pain have been associated with the claims file.
Further, for private healthcare providers from whom treatment records have not been received, responses have been received indicating that such records are unavailable and have been destroyed. See March 2014 response from A.M. group, April 2014 response from M. Hospital. The Veteran has additionally indicated that several of the identified private healthcare providers/hospitals no longer exist. See e.g., April 2014 written statement. Based on the above, it appears that the available private treatment records pertinent to the appeal have been associated with the claims file and the Board finds that the Veteran has cooperated and assisted VA in developing evidence. Cf. Wood v. Derwinski, 1 Vet. App. 190 (1991). To the extent there remain any outstanding private treatment records additionally identified by the Veteran, the AOJ should make all reasonable attempts to obtain such records.
Next, where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). At a July 2014 VA examination, the Veteran reported low back pain during service, but did not bring these complaints to the attention of medical personnel. The Veteran reported that the back complaints became more frequent and intense in the late 1990s and early 2000s, at which time an MRI reflected lumbar degenerative joint disease. The VA examiner opined that the lumbar spine disability was less likely than not incurred in or caused by service because the Veteran did not have in-service documented low back complaints, but rather the back complaints became prominent in the late 1990s.
In December 2014 and February 2015 addendum VA medical opinions, the VA examiner noted review of an August 2012 private medical opinion by Dr. J.H. that indicated the Veteran's back pain commenced in 2001 and current lumbar spine degenerative joint disease. The VA examiner indicated that the August 2012 private medical opinion further confirms the opinion that the current lumbar spine disability is less likely as not service-related because there were no in-service back symptoms or signs and the back problems began years after discharge.
The Board finds that the July 2014 VA examination report and December 2014 and February 2015 addendum VA medical opinions are inadequate because they are based, at least in part, on the inaccurate factual predicate that there is no evidence to support a finding that the Veteran's current lumbar spine disability is related to service. In a May 2011 private treatment record, Dr. J.H. noted that the Veteran has well-documented chronic intermittent lower back pain beginning in approximately 2001. The Veteran reported that during service (age 18 to 21) he may have sustained a back injury. Dr. J.H. opined that, if that is the case, it is possible that those events during service could have contributed to the current chronic intermittent lower back disorder. It is not clear what Dr. J.H. relied on for the basis of the opinion other than the Veteran's lay statements. The July 2014 VA examiner did not address the May 2011 positive nexus opinion from Dr. J.H., but rather only addressed an August 2012 private treatment record from Dr. J.H.
The July 2014 VA examiner also did not address statements from the Veteran's former spouse and siblings reporting that they personally observed the Veteran complain of low back pain shortly after service separation. In a February 2011 written statement, the Veteran's former spouse reported that, while she was married to the Veteran from 1981 through 1985, the Veteran experienced occasional back pain. In a February 2011 written statement, one of the Veteran's brothers reported that he observed and knew the Veteran coped with recurrent back pain since he separated from service in 1979. In a March 2011 written statement, another brother reported several conversations over the phone in 1979 in which the Veteran reported back pain.
The Board finds that the lay statements from the Veteran and others who knew him during and after service serve are some evidence that the Veteran may have experienced back problems during or shortly after service separation. The July 2014 VA examiner did not address the May 2011 private medical opinion by
Dr. J.H or the lay statements from the Veteran's former spouse and siblings, which serve as some evidence that the Veteran's current lumbar spine disability may be related to service. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis).
The Board further finds that the VA examination report and associated medical opinions are inadequate because they are based on the inaccurate factual predicate that the post-service back pain and symptoms onset in the last 1990s/early 2000s. February to May 1991 private treatment records note that the Veteran reported low back pain following a February 1991 work injury and was treated for a low back strain. Based on the above, the Board finds that an additional VA opinion is necessary as there remains some question as to the etiology of the lumbar spine disability. 38 C.F.R. § 3.159(c)(4) (2016); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006).
Accordingly, the case is REMANDED for the following action:
1. The AOJ should contact the Veteran and request he identify the names, addresses, and approximate dates of treatment for all health care providers (not already of record) who have treated him for any lumbar spine disabilities.
The AOJ should ask the Veteran to provide the copies of any private treatment records he has received with regard to treatment for the lumbar spine disabilities (and not already of record). The AOJ should request copies of any private treatment records identified by the Veteran that have not been previously secured and associate them with the claims folder. All reasonable attempts should be made to obtain these records.
2. Arrange for the claims file to be reviewed by the VA examiner who prepared the July 2014 VA examination report (or a suitable substitute if that VA examiner is unavailable) for the purpose of preparing an addendum opinion to the examination report. If it is determined that another examination is needed to provide the required opinion, the Veteran should be afforded the appropriate VA examination to assist in determining the etiology of the current lumbar spine disabilities. The VA examiner should review the claims folder and then offer the following opinions with supporting rationale:
Is it at least as likely as not (50 percent or greater probability) that any lumbar spine disability was incurred in or caused by active service?
In answering this question, the VA examiner should note and discuss the following:
(1) the January 1991 service separation physical examination report and associated report of medical history,
(2) 1991 and 2001 (post-service) employment-related back injuries,
(3) the May 2011 private medical opinion report from Dr. J.H.,
(4) the Veteran's statements that he experienced back pain during basic training and as a heavy truck driver during service, and
(5) the statements from the Veteran's former spouse and brothers that they observed the Veteran experiencing back pain shortly after service separation.
The VA examiner should note that the mere lack of documentation in the service records, in itself, is not a sufficient basis for a rationale.
3. Then, readjudicate the issue on appeal. If any part of the appeal remains denied, provide the Veteran with a supplemental statement of the case and allow an appropriate time for response.
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
J. Parker L. HOWELL
Veterans Law Judge Veterans Law Judge
Board of Veterans' Appeals Board of Veterans' Appeals
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K. Parakkal
Veterans Law Judge
Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).